United States v. Hacker ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-50964
Summary Calendar
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
MICHAEL HACKER,
Defendant-Appellant.
Appeal from the United States District Court
For the Western District of Texas
USDC No. SA-98-CR-60-9
November 6, 2000
Before HIGGINBOTHAM, WIENER, and BARKSDALE, Circuit Judges.
PER CURIAM:*
Michael Hacker appeals his sentencing after having pled guilty
to conspiracy to possess with intent to distribute marijuana. He
argues that the district court clearly erred (1) in its
determination of drug quantity for purposes of relevant conduct;
(2) in denying a downward adjustment in his offense level for
acceptance of responsibility; and (3) by assigning one criminal
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
history point to his conviction for driving without insurance. Upon
review of the records, briefings, and applicable case law, we
conclude that the district court committed no reversible error.
Hacker failed to produce evidence sufficient to rebut both the
PSR's estimate of drug quantity and the testimony of the case
agent, upon which the PSR estimate was based. Hacker's conclusory
assertion that he made only 15 deliveries of marijuana, averaging
only 40 pounds per delivery, is insufficient to establish clear
error.1
In addition, Hacker tested positive for marijuana use on two
separate occasions while on pretrial release. Even if these
positive tests were based on Hacker's addiction to marijuana, they
support the district court's decision to deny him the acceptance-
of-responsibility adjustment.2
Finally, because the misdemeanor conviction resulted in a 60-
day sentence of imprisonment and one year of probation, the
district court did not err in applying it to a determination of
Hacker's criminal history score. Indeed, Hacker's conviction for
driving without insurance is "similar" to "[d]riving without a
1
See United States v. Mir, 919 F.2d 940, 943 (5th Cir. 1990).
2
See United States v. Flucas, 99 F.3d 177, 180 (5th Cir.
1996); United States v. Rickett, 89 F.3d 224, 227-28 (5th Cir.
1996).
2
license," for purposes of U.S.S.G. § 4A1.2(c)(1).3 In light of the
preceding, Hacker's conviction and sentence are AFFIRMED.
AFFIRMED.
3
See United States v. Moore, 997 F.2d 30, 34 (5th Cir. 1993);
United States v. Hardeman, 933 F.2d 278 (5th Cir. 1991).
3